Dispute Resolution and Arbitration Commons^™

The Myth Of The Gladiator And Law Students' Negotiation Styles, Melissa Lee Nelken

Faculty Scholarship

No abstract provided.

Table Of Contents - Cardozo Journal Of Conflict Resolution, Vol. 6, Iss. 2

Cardozo Journal of Conflict Resolution

No abstract provided.

Fitting The Forum To The Fuss With Sticky Defaults: Failure In The Market For Dispute Resolution Services?, Maurits Barendrecht, Berend R. De Vries

Cardozo Journal of Conflict Resolution

"Fitting the forum to the fuss" - i.e., finding the optimal way to deal with every dispute - is an appealing slogan of proponents of alternative dispute resolution ("ADR"). The phrase also summarizes the contract one would expect rational disputants to make once they are embroiled in a conflict they cannot resolve together. Disputants can "buy" dispute resolution services, such as various forms of court intervention, mediation, or arbitration. Agreeing to a contract to buy such services together with an opponent, however, is likely to be difficult. These difficulties are assessed in this article. The barriers to dispute resolution are …

Mediation And Justice: What Standards Govern?, Joseph B. Stulberg

Cardozo Journal of Conflict Resolution

I find it challenging to write about mediation and justice for several perplexing reasons. The concept of justice is constitutionally ambiguous; trying to analyze it concretely is a challenging task for both writer and reader. Despite the concept's ambiguity, however, each of us can readily describe situations that instantly appall us for reasons that we intuitively identify as constituting acts or occasions of injustice. The irony then, and hence the challenge, is that we know that the concept of justice is an important phenomenon to address, yet we have difficulty saying something constructive or useful about it.

The Myth Of The Gladiator And Law Students' Negotiation Styles, Melissa L. Nelken

Cardozo Journal of Conflict Resolution

"Shark." "Hired gun." The popular view is that lawyers are, by and large, cut-throat competitors who take the ethical obligation of zealous advocacy on behalf of their clients to the extreme, heedless of the cost to others or to society as a whole. The adversarial system (with its winners and losers), law school teaching, and the portrayal of lawyers in popular media, all feed this stereotype. The focus on litigation promotes misperceptions about what most lawyers actually do. Lawyers make deals and resolve virtually all litigated matters short of trial, often through negotiation. Studies of lawyers' behavior in negotiation over …

Shifting The Focus From The Myth Of "The Vanishing Trial" To Complex Conflict Management Systems, Or I Learned Almost Everything I Need To Know About Conflict Resolution From Marc Galanter, John Lande

Cardozo Journal of Conflict Resolution

To say that "The Vanishing Trial" is a myth is not to suggest that the facts or analysis in Professor Galanter's report are fictional or inaccurate. Indeed, he marshals a massive amount of data to show that the number of trials and the trial rates have been declining for the past four decades, particularly in the federal courts. The report documents an apparent paradox: the proportion of cases going to trial has dropped sharply during the past forty years despite substantial increases in many other legal indicators including the number of lawyers, the number of cases filed, and the amount …

Masthead, Cardozo Journal Of Conflict Resolution, Vol. 7 (2005-06)

Cardozo Journal of Conflict Resolution

No abstract provided.

Recipient Of The 2004 International Advocate For Peace Award, Eve Ensler

Cardozo Journal of Conflict Resolution

No abstract provided.

Mobile Home Mania? Protecting Procedurally Fair Arbitration In A Consumer Microcosm, Amy J. Schmitz

Faculty Publications

Consumers' lack of warranty remedies prompted Congress to enact the 2000 Manufactured Housing Improvement Act (MHIA). Under the Act, the Office of Housing and Urban Development (HUD) must develop a program for resolving MH warranty disputes by the end of 2005. This article provides input regarding that program. It also calls for broader protection of procedural fairness in arbitration of disputes regarding warranties for mobile or manufactured homes (referred to in the article as MHs for ease of reference). Although HUD's program aims to create a process for resolving warranty disputes among manufacturers, dealers and installers, this article proposes that …

Problem-Solving Advocacy In Mediations: A Model Of Client Representation, Harold Abramson

Scholarly Works

Many sophisticated and experienced litigators realize that mediation calls for a different approach, but they still muddle through the mediation sessions. They are learning on the job. Even though many attorneys prefer a problem-solving approach to negotiations, attorneys are still in the early stages of figuring out how to do it in mediations. Many attorneys went to law school before courses on dispute resolution were offered, and the dispute resolution courses that have emerged in law schools over the last twenty-five years have been largely limited to teaching students to be mediators, not advocates. Continuing legal education programs are only …

Final Offer Arbitration, Harold I. Abramson

Scholarly Works

No abstract provided.

Ambiguity, Sovereignty And Identity In Ireland: Peace And Transition, James J. Friedberg

Faculty & Staff Scholarship

No abstract provided.

To Sue Is Human; To Settle Divine: Intercultural Collaborations To Expand The Use Of Mediation In Costa Rica, Donald C. Peters

UF Law Faculty Publications

Virtually all societies have developed non-adjudicative methods to resolve disputes. Third party intervention to help resolve disputes consensually, typically called mediation or conciliation, occurs in all cultures throughout the world. It now occurs in Costa Rica only voluntarily and primarily in family, community, labor, agricultural, and trade contexts.

Connecting mediation or conciliation to court systems provides a comparatively new use of third party interventions not involving adjudication through arbitration or litigation. This typically occurs by referring matters for mediation services provided by state-funded programs, private centers, and private mediators. Florida, the first American state to authorize courts to order mediation …

The Culture Of Legal Denial, Jonathan R. Cohen

UF Law Faculty Publications

The goals of this essay are twofold. The first is to examine critically the practice of lawyers assisting clients in denying harms they commit and suggest some ways of changing that practice. Lawyers commonly presume that their clients' interests are best served by denial. Yet such a presumption is not warranted. Given the moral, psychological, relational, and sometimes even economic risks of denial to the injurer, lawyers should consider discussing responsibility taking more often with clients. The second is to explore several structural or systemic factors that may reinforce the practice of denial seen day in and day out within …

Resolution Procedures To Resolve Trust Beneficiary Complaints, Robert Whitman

Faculty Articles and Papers

No abstract provided.

When Contracting Around The Law Will Not Work: The Potential Inability To Expressly Prohibit Punitive Damages In Arbitration, Alexia Norris

Journal of Dispute Resolution

Just as the availability of all appropriate remedies is an important part of judicial litigation, the attempt to identify and limit those remedies is an issue in an arbitration proceeding. After the United States Supreme Court's 1995 decision in Mastrobuono v. Shearson Lehman Hutton, Inc., it seemed clear that parties would be allowed to seek punitive damages if an agreement did not expressly prohibit such damages. Even so, parties continue to falter in writing agreements meant to contain the proper language that will succeed in limiting the availability of certain remedies. This is due to the continued confusion over how …

Horizontal Uniformity And Vertical Chaos: State Choice Of Law Clauses And Preemption Under The Federal Arbitration Act, Jennifer Trieshmann

Journal of Dispute Resolution

Although the goal of arbitration is speedy and efficient resolution of disputes, these goals may be frustrated by judicial interpretation of choice of law provisions in commercial agreements. There is uncertainty as to the law that a court will apply in deciding a motion to stay or otherwise interfere with an arbitration. There is further uncertainty surrounding whether the law governing arbitration is the Federal Arbitration Act (FAA), the arbitration law of the state where the arbitration is taking place, or that of the state mentioned in a choice of law clause. The federal courts have adopted conflicting standards so …

Dispute Resolution, Access To Civil Justice And Legal Education, Trevor C. W. Farrow

Articles & Book Chapters

This article examines current dispute resolution teaching and research programs in the context of improving access to justice through recent civil justice reform initiatives. Animated by extensive domestic and international literature, online and survey-based research, the article explores the landscape of alternative dispute resolution education (primarily at law schools), comments on the need for continued thinking and reform and acts as a leading resource to assist in the ongoing, collaborative development of dispute resolution initiatives in legal education in Canada and abroad.

2004 Special Masters Conference: Transcript Of Proceedings, Various Special Masters

William Mitchell Law Review

A historic gathering of special masters occurred on October 15th and 16th, 2004 in Saint Paul, Minnesota. Federal and state court-appointed masters from around the country met for the first time to share their experiences as special masters and to form a national association of court appointed masters. This issue of the William Mitchell Law Review contains articles presented at the conference and the transcript of faculty presentations. Throughout the transcript of faculty presentations, the word “speaker” denotes a conference attendee.

Lawyers, Democracy, And Dispute Resolution: The Declining Influence Of Lawyer-Statesmen Politicians And Lawyerly Values, Jeffrey W. Stempel

Scholarly Works

This Comment reviews the shrinking presence of lawyers in the arena of macrocosmic public policy. It also discusses the declining statesmanship of lawyer-politicians as part of a general decline of lawyer professionalism in the face of social and economic pressures tending to undermine lawyer professionalism. Furthermore, it addresses how the net impact of these factors undermines the potential of lawyers to act as a positive force for public policy dispute resolution.

Foreward: Competing And Complementary Rule Systems: Civil Procedure And Adr, Jean R. Sternlight

Scholarly Works

This is a foreword to articles submitted as part of the Association of American Law School’s Symposium during at the January 2004 AALS’s Annual Meeting in Atlanta, Georgia entitled "Competing or Complementary Rule Systems? Adjudication, Arbitration and the Procedural World of the Future." The session brought together panelists whose expertises ranged across the academy. The legal academics were joined by the federal district judge now chairing the committee charged by the Judicial Conference of the United States to draft federal civil procedural rules. The stimulating session reflected on the relationship between litigation and non-litigation approaches to dispute resolution. Participants explored …

Creeping Mandatory Arbitration: Is It Just?, Jean R. Sternlight

Scholarly Works

This Article examines the phenomenon of mandatory binding arbitration, imposed on consumers and employees, and considers whether this type of dispute resolution serves or instead undermines justice. It is fairly easy to attack binding arbitration as unfair, for example pointing to the fact that it undermines rights to jury trial and to proceed in class actions. However, this Article seeks to examine the phenomenon of mandatory binding arbitration from a broader perspective, recognizing that it is inappropriate to assume that justice requires our existing system of litigation, with its class actions and jury trial. The Article concludes that while informal …

Adr: The New Equity, Thomas O. Main

Scholarly Works

No abstract provided.

Dispute Resolution And Legal Education: A Bibliography, Trevor C. W. Farrow

Articles & Book Chapters

No abstract provided.

The Debate Over Consumer Arbitration Clauses, Emily Rozwadowski

Public Interest Law Reporter

No abstract provided.

Separate And Not Equal: Integrating Civil Procedure And Adr In Legal Academia, Jean R. Sternlight

Scholarly Works

Traditionally, academics specializing in ADR and civil procedure have not tended to deal with each other's issues. The typical civil procedure course focuses on litigation, and at best throws in a few classes on mediation and negotiation. Similarly, the typical ADR course devotes little or no attention to litigation, law, courts, or administrative institutions. Thus, the two disciplines are taught quite separately. Further, this separation is not equal. While students are required to learn about litigation, and are also offered many additional litigation electives, the ADR curriculum is almost always purely elective, and the classes are much smaller. Yet, the …

The Sutherland Report And Dispute Settlement, Mark L. Movsesian

Faculty Publications

Ten years after the organization's founding, an air of disappointment surrounds the WTO. The great promise of a global trade regime, dedicated to the principle of comparative advantage, seems to have stalled. The Doha Development Round, launched in 2001 in an attempt to redeem the disastrous Seattle Ministerial Conference of 1999, has been stymied by familiar disputes between North and South, mostly with respect to agricultural issues, but with respect to nonagricultural market access and services as well. Frustrated by impasses at the WTO, members have increasingly bypassed the organization in favor of discrete "preferential trade agreements", or PTAs, that …

The Discourse Beneath: Emotional Epistemology In Legal Deliberation And Negotiation, Erin Ryan

Faculty Publications

No abstract provided.

Self-Determination In International Mediation: Some Preliminary Reflections , Jacqueline Nolan-Haley

Faculty Scholarship

Few concepts have generated as much discussion in the post-war international legal system as that of “self-determination.” Scholars debate the proper identity of the "selves" endowed with this right, its boundaries, and its normative relevance. When the focus turns to mediation, the discussion becomes murky because the concept of self-determination has both procedural and substantive components, and is noticeably different in the private and public sectors. The generic concept of self-determination relates to ideas of democratic governance and the Enlightenment belief that legitimate government depends upon the consent of the governed. As adapted to private mediation theory, the right of …

The Concept Of Justice In Mediation: A Psychobiography, Ellen Waldman

Cardozo Journal of Conflict Resolution

Discussions of what justice means in mediation have a dialectical quality to them. At various points in the field's history, the notion that justice in mediation consists of fully maximized disputant self-determination holds sway. At other historical moments, a tentative consensus appears to recognize that justice in mediation requires normative content independent of the disputants' beliefs and values.